Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Wednesday, April 30, 2014

Sotomayor's Plea

The Supreme Court’s decision the other day in the Michigan
affirmative action case—yes, Schuette v.
BAMN was about affirmative action, hang on—prompted a flood of commentary,
but neither the reporters covering the Court nor her fellow justices seemed to respond to Justice Sotomayor’s plea for frank talk. Respect for
precedent keeps the justices from frankly acknowledging that affirmative action
was at issue in the case. The result is that none of the five opinions clearly
state the essential facts that are in dispute.

In Sotomayor’s dissent, joined only by Justice Ginsburg, she
argues that affirmative action was followed by an increase in the proportion of
students who identify themselves as “black” or “Hispanic” (or both) admitted to
colleges and law schools that used such methods. The representation of racial minotities had been well below their share of the general
population, began to rise after affirmative action was undertaken, and then
declined sharply again when it was eliminated. One might draw the reasonable
conclusion that affirmative action in admissions policy had helped to remedy effects of past and present race discrimination, and when affirmative action policies were suspended the effects of race discrimination reasserted
themselves.

The State of Michigan disputed her facts, and Sotomayor was
unable to make her point clearly, in part because the benign effects of “race
conscious” policies are not accepted as legitimate reasons for their adoption.
For the past twenty years, the Court has been asserting that affirmative action
for blacks injures whites, those whom the first Justice Harlan called the “dominant
race.” (Yes, that Justice Harlan, the one who argued for a “color-blind”
Constitution more than a century ago.)

Sotomayor and the male justices did not so much disagree as
they talked past each other. Justices Kennedy, Breyer and Scalia, and Chief
Justice Roberts, each expressed different reasons for upholding Michigan’s ban
on race-conscious policies, and no opinion secured a majority vote.
(Justice Kagan recused herself.) Each in different ways denied
that the case was about affirmative action, however. Sticking to the doctrines
announced in recent cases, the men insisted that the only question was whether race may be taken into account when a school seeks “diversity”
in its student body. This was a policy matter the voters of Michigan might decide for themselves. Putting the question this way, of course, it answers itself.

Affirmative action, which appears to be needed if racial diversity is the target, was not openly discussed because it is barred
except in extraordinary circumstances. Under recent precedents, laws that apply
to racial groups must treat them equally. As Justices Scalia and Thomas
suggested in their opinion, state policies that discriminate against whites are forbidden, just as policies that discriminate against blacks
are forbidden. Affirmative action in their view discriminates against the "majority." The four concurring opinions for the Court seemed to agree
that race need not be used as a criterion of “diversity”; that affirmative
policies in favor of “minorities” discriminate against whites, and that any
race-conscious policy is counter-productive because it cheapens the
achievements of a favored minority and perpetuates racial stereotypes. These
are conclusions of fact, but none of the four concurring opinions made much
effort to establish their factual basis, relying instead on doctrine-driven precedent. The justices seemed to assert that the majority of Michigan voters vindicated the factual arguments against affirmative action by voting to ban it.

I think Sotomayor complaint is that doctrines have driven
out facts. The national debate over affirmative action is being conducted as a
war of slogans, and the Court has shirked its responsibility to separate fact from assertion, and to decide whether the Michigan ban on affirmative action has a reasonable basis.

Neither side in the debate has done a very good job of
stating a factual basis for their policy conclusions; but more on that another day.